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Mogelefsky v. Schoem

Decided: January 7, 1966.

HAROLD MOGELEFSKY AND MARTIN A. BERMAN, PLAINTIFFS-APPELLANTS,
v.
IRA SCHOEM, MAYOR OF THE CITY OF CLIFTON, ET AL., DEFENDANTS-RESPONDENTS. MARTIN A. BERMAN, PLAINTIFF-APPELLANT, V. IRA SCHOEM, MAYOR, ETC., ET AL., DEFENDANTS-RESPONDENTS



Conford, Kilkenny and Leonard. The opinion of the court was delivered by Kilkenny, J.A.D.

Kilkenny

Plaintiffs Mogelefsky and Berman appeal from a summary judgment entered by the Chancery Division, on motion of defendants, dismissing their complaint, in which they sought a judgment (1) declaring ordinance No. 24-30 of the City of Clifton to be null and void, and (2) enjoining the city and its police department from the enforcement of the provisions of said ordinance against plaintiffs.

The trial court ruled that the ordinance in question, which prohibits persons from soliciting or calling from house to house to sell or attempt to sell goods, or to take orders for services to be performed in the future, unless the solicitor has a written permit therefor from the chief of police, was a valid exercise of the municipal police power. It also held that the ordinance was applicable to plaintiffs, notwithstanding that they were duly licensed by the New Jersey Real Estate Commission as real estate salesmen and that among their licensed privileges, under N.J.S.A. 45:15-3, they were authorized to list properties for sale, offer or attempt to negotiate sales, and solicit for prospective purchasers. Injunctive relief was denied.

In the companion case plaintiff Berman appeals from a further summary judgment entered by the Chancery Division, on motion of defendants, dismissing his complaint, whereby he

similarly sought to enjoin defendants from enforcing the provisions of the aforesaid ordinance against him and, in effect, requested an order compelling the chief of police to issue a house to house solicitor's permit to him. His application for such a permit had been denied by the chief of police because of his previous violation of the ordinance.

The trial court iterated its previous holding that the ordinance was valid and was applicable to plaintiff, notwithstanding his being licensed by the Real Estate Commission as a real estate salesman. Injunctive relief was denied. The refusal of the chief of police to grant the permit for 1964 was held to be justifiable because of plaintiff's previous deliberate violation of the ordinance. The police policy was to deny an application for a canvasser's permit for any year during which the applicant violated the ordinance.

We ordered the appeals consolidated because both cases involved common issues.

The facts are not in dispute. Accordingly, it was appropriate to move for summary judgment. R.R. 4:58.

Plaintiffs were duly licensed real estate salesmen and were employed by J.I. Kislak, Inc., a licensed real estate broker. Both had applied for and obtained from the chief of police of Clifton canvassing permits for the year 1963, but they had not obtained one for the year 1964. On April 15, 1964 plaintiffs were going from house to house in Clifton soliciting the owners of the houses for a possible sale of their respective properties through their employer. They were arrested by the local police and charged with a violation of section 24-30 of the Revised Ordinances of Clifton. After complaints filed against them in the Municipal Court of Clifton by the chief of police for violation of the ordinance, they sought injunctive relief from the Chancery Division, as first noted above.

The municipal court complaints were held in abeyance pending disposition of the first suit in the Chancery Division. Judgment dismissing that suit was entered on June 22, 1964. Thereafter, on July 13, 1964, plaintiffs were convicted in the Clifton municipal court of violating the ordinance, by admittedly

soliciting from house to house properties to be sold by their employer, such solicitation having been indulged in without the permit required by the ordinance. Appeals from the municipal court convictions were taken to the Passaic County Court and we are advised that those appeals are still pending.

Section 24-30 provides:

"No person shall solicit or call from house to house in the city to sell or attempt to sell goods by sample or to take or attempt to take orders for the future delivery of goods, merchandise, wares or any other personal property of any nature whatsoever, or take or attempt to take orders for services to be ...


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